Professional Documents
Culture Documents
No. 09-3419
Paul J. Fishman
United States Attorney
George S. Leone
Chief United States Attorney
John F. Romano (ARGUED)
Assistant United States Attorney
The Honorable Arthur L. Alarcn, Senior Judge, United States Court of Appeals for
the Ninth Circuit, sitting by designation.
Viewed in the light most favorable to the Government, and drawing all inferences
in favor of the jurys verdict, the record discloses that the following evidence was before
the jury. Dobson was a Deputy United States Marshal prior to his conviction. Despite the
United States Marshals Services ethical code of conduct prohibiting the association of
Deputy United States Marshals with known felons other than immediate family members,
Dobson maintained a close friendship with Larry Langforddavis, a seven-time convicted
felon.
On September 1, 2007, Langforddavis was stopped for speeding by Officer
Espinosa of the Fanwood Borough Police Department. A search warrant was executed
which turned up a fully loaded handgun, 48 pink Ecstasy pills, and an official United
States Marshals Service placard that had been assigned to Dobson. On September 17,
2007, Dobson posted a bond for Langforddaviss release in the amount of $175,000.2 The
information sheet submitted to the bail bondsman in connection with the September 2007
bond, which was signed by Dobson, indicated that Langforddavis was Dobsons adopted
brother and that they had known each other for fifteen years.
In November 2007, Dobson sought and received approval from the United States
Marshals Service for the purchase of a secondary weapon to be used as an off-duty or
backup weapon. He purchased a Glock 27, .40 caliber handgun through the United States
Marshals Service, and took possession of the firearm, Serial No. LSK711, on December 6,
Dobson had also posted a bond on May 19, 2007 for $20,000.
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2007. Dobson was never authorized to carry the weapon, however, because he had not
been qualified by the United States Marshals Service, i.e., demonstrated that he was
proficient, in the use of that firearm.
On the evening of January 4, 2008, Dobson attended the Jersey Girls strip club in
Elizabeth, New Jersey, with Langforddavis and other friends to celebrate his birthday.
When Langforddavis arrived at the club, Dobson introduced him to a club security
employee as a corrections officer. As a result, the security employee permitted
Langforddavis to enter the club without searching him for weapons.
In the early hours of January 5, 2008, Dobson was the victim of an attempted
robbery in the Jersey Girls parking lot. He was assaulted and suffered injuries to his head
and hands. Dobson was escorted back into the club by Jersey Girls employees who tended
to his wounds. Langforddavis approached Dobson, got into very, very close quarters with
him and they exchanged a couple of words. Langforddavis then shot out the front
door of the club, jumped into his vehicle and sped off in pursuit of the vehicle that had
left the parking lot.
Langforddavis returned to the club ten to twenty minutes later. In Dobsons
presence about four or five feet away Langforddavis stated in a very celebratory
manner that he got two of them and sprayed the vehicle. Two Jersey Girls employees
testified that they took Langforddaviss statement to mean that he had shot at the people
who had assaulted Dobson, and that he had shot up the car they were driving. Dobson
responded that he did not care, he wanted his gun, and he wanted to get out of there.
The Jersey Girls employees called an ambulance and the police to the scene. Before the
police arrived, however, Dobson and Langforddavis left to go to the emergency room at
Trinitas Hospital in Elizabeth, New Jersey.
Responding to a report that a man had been shot, Elizabeth Police Officers Michael
Kelly, Edward Benenati, and Paul Pereira arrived at the hospital at approximately 3:30
a.m. Sergeant Kelly testified that Dobson appeared to be alert, conscious, and a little
disheveled. He was bleeding from injuries to his head and hand. He appeared to be
intoxicated, but not drunk.3
As Sergeant Kelly and Officer Benenati were questioning Dobson in the hospital,
Langforddavis walked right up to [Benenati], put his arm around [him] and said . . . How
you doing, bro. We all cops and COs. Im with the state. I got my brace right here.
Langforddavis lifted up his left leg pulling up his pant leg and exposed a Glock small
firearm in an ankle brace. When Langforddavis made this statement about being a state
law enforcement officer, Dobson, who was sitting upright three to five feet from
Langforddavis and Benenati, did not correct Langforddaviss statement or otherwise
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Assistant Chief Deputy United States Marshal John Sarino and Deputy United States
Marshal Lourdes Timberman went to the hospital on January 5, 2008, at approximately
4:30 a.m. or 5:00 a.m. to find out what had occurred with Dobson. Deputy Marshal
Timberman observed that Dobson was sitting upright on the hospital bed, and was lucid
and coherent. Dobson spoke to the Marshals without slurring his words or wobbling back
and forth. He asked to speak privately with Marshal Timberman because he was
concerned about whether he might be in trouble with the Chief Deputy United States
Marshal, Officer Timbermans husband.
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indicate to Officers Benenati and Kelly that Langforddavis was not in fact a law
enforcement officer.
Officer Benanti informed Officer Pereira that Langforddavis had identified himself
as a corrections officer, but that no one had seen any official identification. Officer
Pereira questioned Langforddavis further in the emergency room lobby and asked to see
his credentials. Officer Pereira asked Langforddavis whether he was on the job, to
which Langforddavis replied, No. 4 Officer Pereira became confused and thought he
must be speaking to the wrong individual, so he sought out Officers Benenati and Kelly,
who had seen Langforddavis display his weapon, to clarify the situation. During this time,
Langforddavis left the hospital and drove off hastily in his vehicle, although it had a flat
tire and he abandoned a perfectly good spare tire in the parking lot.
When Officer Pereira discovered that Langforddavis had left the hospital, he
immediately put out a dispatch transmission informing all units in the area [that if] a
silver Range Rover with a black driver [was spotted], he is in possession of a weapon and
[should be] approach[ed] with caution. Officer Pereira questioned Dobson about
Langforddaviss identity, which was still unknown at that time. Dobson provided evasive
answers and was uncooperative. He told Pereira that the only thing he really knew [was
that] his first name is Larry. Officer Benenati also questioned Dobson about
Langforddaviss identity. Dobson told Officer Pereira that, while he and Langforddavis
4
It was established through other witness testimony that on the job is the vernacular
for working with law enforcement.
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were very close friends, . . . kind of like family, he did not know Langforddaviss name,
telephone number, or address. Dobson gave them the run-around, telling Officers
Benenati and Pereira that he only knew Langforddavis from the club by his nickname, Lay
Lay. Later, back at police headquarters, the officers were able to determine
Langforddaviss identity through the use of computer searches of available databases.
In the early morning hours of January 19, 2008, Sergeant Kelly, who had witnessed
Langforddavis display a firearm in the hospital, observed Langforddavis in the Jersey Girls
parking lot. Upon approaching Langforddavis and patting him down, Sergeant Kelly felt a
firearm on Langforddaviss ankle and retrieved a black Glock Model 27, .40 caliber, from
an ankle holster. It appeared to be the same black handgun and ankle holster that Sergeant
Kelly had seen Langforddavis display in the hospital two weeks earlier on January 5, 2008.
Sergeant Kelly asked Langforddavis if he was in law enforcement. Langforddavis replied
that he was not. He also stated he did not have a permit to carry a firearm. Langforddavis
was arrested for illegal possession of a weapon. The gun recovered on January 19, 2008,
was the same weapon purchased by Dobson through the United States Marshals Service as
a secondary service weapon in November 2007. On January 22, 2008, Dobson posted a
bond in the amount of $25,000 for Langforddaviss release.
On January 23, 2008, Detective Paul Pasternak interviewed Dobson by telephone
and arranged to set up an in-person interview. In the January 23, 2008 phone interview,
Dobson stated that he had known Langfordavis since 2005. On January 25, 2008,
Dobson:
Detective Pasternak:
Dobson:
Mm hmm.
Detective Pasternak:
Dobson:
Yeah- . . .
The video, an audio recording, and the transcript of the conversation were played for
the jury at Dobsons trial and introduced into evidence.
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involving unlawful possession of a firearm by a convicted felon and the providing of such
a firearm to a convicted felon. Dobson was questioned about the events of the morning of
January 5, 2008. The transcript of the grand jury proceedings reflects the following
colloquy:
Q:
A:
Q:
A:
Do you know whether Langford Davis [sic] had a gun on him that
night?
No.
You dont know whether he had one on him?
No. I dont even remember seeing him at the hospital.
Do you know whether Langford Davis [sic] had a gun on him that
night?
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A:
Q:
A:
No.
You dont know whether he had one on him?
No. I dont even remember seeing him at the hospital?
On June 29, 2009, a seven-day jury trial commenced in the District Court for the
District of New Jersey. During the trial, the jury heard an audio recording and received a
transcript of Dobsons grand-jury testimony.6
After the Government rested its case-in-chief, Dobson moved for judgment of
acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure. The District
Court reserved decision. Dobson renewed his Rule 29 motion after presenting his defense.
The District Court again reserved decision.
After several days of deliberations, the jury found Dobson guilty of knowing
disposal of a firearm to a felon as charged in Count One, and perjury as alleged in Count
The Governments theory of the case was, in part, that Dobson purchased the
secondary service weapon for Langforddaviss use after Langforddaviss gun was
confiscated as a result of his arrest in September 2007. In support of its theory, the
Government pointed to the following evidence: Dobson was never authorized to carry the
weapon because he was never qualified to use it by the United States Marshals Service;
Langforddavis displayed a weapon looking like Dobsons Glock 27 to officers of the
Elizabeth Police Department on January 5, 2008; Langforddavis was arrested for illegal
possession of Dobsons weapon on January 19, 2008.
The Government also argued that the jury could reasonably infer that Dobson did
not carry his weapon out with him on January, 19, 2008, or leave it under the seat of
Langforddaviss car as he testified, but rather that Langforddavis had it in his possession
all along. The evidence supporting this inference offered by the Government is the fact
that on January 15, 2008, Dobson had surgery on the hand that he would use to operate a
firearm and was still recovering. Ten days later on January 25, 2008, as captured in the
videotaped interviewed with Detective Pasternak, Dobson was still having difficulty
holding a pen to sign the waiver presented to him for his signature.
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Five. Thereafter, Dobson renewed his motion for a judgment of acquittal. He argued that
[j]udgments of acquittal are warranted on Counts One and Five because the government
failed to adduce sufficient evidence to establish, beyond a reasonable doubt, the necessary
elements of the charged statutes. In his motion for judgment of acquittal, Dobson did not
argue that the district court should grant his Rule 29 motion because of the typographical
error in the Superseding Indictment.7 The District Court denied the motion with respect to
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rational trier of fact could have found proof of guilt beyond a reasonable doubt based on
the available evidence. United States v. Wolfe, 245 F.3d 257, 261 (3d Cir. 2001)
(emphasis added); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979) (same). The
district court must also draw all reasonable inferences in favor of the jury verdict.
United States v. Anderskow, 88 F.3d 245, 251 (3d Cir. 1996). Thus, a finding of
insufficiency should be confined to cases where the prosecutions failure is clear.
United States v. Smith, 294 F.3d 473, 477 (3d Cir. 2002) (quoting United States v. Leon,
739 F.2d 885, 891 (3d Cir. 1984)). This Court reviews the grants or denials of Rule 29
motions de novo and independently applies the same standard as the District Court.
United States v. Bobb, 471 F.3d 491, 494 (3d Cir. 2006).
B
In an oral ruling from the bench on Dobsons motion for acquittal, the District
Court reasoned follows:
So thats the entire count, the issues I have with it is the
question mark on the last line within the superseding
indictment, at the hospital question mark and it went to the
jury in that manner. It seems to me the question mark may
give some ambiguity to the answer or it was up in the air, Mr.
Dobsons answer.
And the materiality, I dont even remember seeing him
at the hospital. Whether thats material is certainly in dispute.
So those two issues give rise to some hesitancy acknowledging
the verdict on that charge.
It seems that the jury could have been confused as to - at the hospital, the question mark after it. And it was never
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[(Langforddavis)] in violation of Title 18 of the United States Code 922. Dobson was
informed of the scope of the grand jurys investigation prior to giving his testimony.
Whether Langforddavis had a firearm in his possession on January 5, 2008, was clearly
material to the grand jurys investigation. It is undisputed that Langforddavis displayed a
Glock handgun to law enforcement officers on January 5, 2008, while he was at the
hospital and within hearing and sight of Dobson. Accordingly, Dobsons awareness of
Langforddaviss presence at the hospital on January 5, 2008 was clearly material to the
grand jurys investigation.
In concluding that Dobsons testimony was not material because of a typographical
error in the punctuation of his grand jury testimony as it was presented in the Superseding
Indictment, the District Court overlooked the fact that the jury had: (1) heard an audio and
videotaped recording of Dobson admitting to Detective Pasternak that he knew
Langforddavis was at the hospital on January 5, 2008; and, (2) also received an accurately
transcribed, correctly punctuated transcript of the statement in question.
Dobson asserts that the only date material to the grand jurys investigation was
January 19, 2008, when Langforddavis was arrested by Sergeant Kelly for possession of a
firearm. The Government was investigating Dobsons role in providing a firearm to a
convicted felon. Thus, the scope of the grand jurys investigation was not limited to the
events of January 19, 2008.8 We agree with the Government that whether Langforddavis
8
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displayed a firearm in Dobsons presence on January 5, 2008, and whether the weapon he
displayed was the same one Langforddavis had in his possession when he was arrested two
weeks later, were areas that were within the scope of the grand jurys investigation.
(Appellants Br. 19.)
Dobsons testimony before the grand jury that he did not know whether
Langforddavis had a firearm on January 5, 2008, and that he did not remember seeing him
at the hospital on that date, had a tendency to impede the grand jurys attempt to identify
witnesses to Langforddaviss possible criminal conduct. Therefore, it was material.
Lardieri, 497 F.2d at 319.
III
The statute under which Dobson was charged in Count Five provides, in relevant
part, that [w]hoever under oath . . . in any proceeding before . . . any court or grand jury
of the United States knowingly makes any false material declaration is guilty of perjury.
18 U.S.C. 1623(a). To prove that a person has committed perjury before a grand jury,
the Government must prove the following elements: (1) the defendant testified before a
grand jury under oath; (2) the defendant knowingly made a false statement; and (3) the
false statement was material to the grand jurys investigation. United States v. Friedhaber,
From at least on or about January 5, 2008, to on or about January 19,
2008 . . . DOBSON . . . knowingly disposed of a firearm and ammunition,
namely a black Glock model 27 .40 caliber semi-automatic handgun . . . to
LARRY LANGFORDDAVIS, knowing and having reasonable cause to
believe that LARRY LANGFORDDAVIS was under indictment for, and
had been convicted in a court, of a [felony].
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house on the early morning of January 5, 2008, (Count Four), demonstrates that [t]here
can be no doubt that the [Government] had failed to establish beyond a reasonable doubt a
fundamental allegation of its casethat Langforddavis had possession of Mr. Dobsons
newly purchased firearm on January 5, 2008 because the jury completely rejected the
allegation in two counts of the indictment. (Appellees Br. 17.) We disagree.
The allegations in Count Five concern Dobsons testimony before the grand jury
that: (1) he did not know whether Langforddavis had any gun on him on January 5, 2008,
not whether Langforddavis was in possession of Dobsons gun; and, (2) he did not
remember seeing Langforddavis in the hospital. In finding Dobson guilty of the perjury
charged in Count Five, the jury could reasonably have concluded: (1) that Dobson lied
about his knowledge of whether Langforddavis was carrying a gun on January 5, 2008,
without deciding that it was indeed Dobsons gun; or (2) that Dobson lied about not
remembering seeing Langforddavis at the hospital; or (3) both.
Assuming arguendo that the verdicts returned by the jury are inconsistent, there is
no requirement that a jurys verdict be consistent. United States v. Mussare, 405 F.3d
161, 167 (3d Cir. 2005). It is not the province of the courts to inquir[e] into a jurys
thought processes. United States v. Powell, 469 U.S. 57, 67 (1984).
B
Dobson maintains further that the witnesses at trial called by the [Government]
and by . . . Dobson describe[d] the physical condition of Dobson on January 5, 2008 in the
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hospital as a man who could easily not remember more than nine months later in October
9, 2008 whether Langforddavis had been at the hospital. (Appellees Br. 20.) The record
presented by the Government was that Dobson was lucid, coherent, alert, and responsive at
the hospital. The fact that the testimony is contradictory does not mean the evidence is
insufficient, only that the jury must make credibility determinations. Govt of the V.I. v.
Isaac, 50 F.3d 1175, 1179 (3d Cir. 1995). The jury was not required to draw an inference
that Dobson was not capable of remembering whether Dobson had been in the hospital on
January 5, 2008 because of his physical condition and state of intoxication. Based on the
testimony presented by Government witnesses, the trial jury was free to conclude that
Dobson was physically and mentally capable of perceiving that Langforddavis was present
in the hospital, and that he was armed with a firearm. We are persuaded that the
Government met its burden of presenting sufficient evidence to persuade any rational trier
of fact that Dobsons grand jury testimony as to Count Five was knowingly false beyond a
reasonable doubt.
Conclusion
As compelled by the law of this Circuit, we have independently reviewed the record
in the light most favorable to the Government, and have drawn all reasonable inferences in
favor of the jurys guilty verdict on Count Five of the Superseding Indictment. The record
shows that Langforddaviss display of a firearm in the presence of Dobson and others on
January 5, 2008 a firearm similar in appearance to Dobsons weapon that was
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20
Rule 29 motion, the court must draw all reasonable inferences in favor of the verdict).
Accordingly, we conclude that the District Court failed to draw all reasonable inferences
in favor of the Government in determining that it did not demonstrate that Dobsons
testimony that he didnt even remember seeing [Langforddavis] at the hospital on
January 5, 2008 was not material to the scope of the grand jurys investigation.
We REVERSE the District Courts order granting Dobsons Rule 29 motion for a
judgment of acquittal as to Count Five of the Superseding Indictment. We REMAND this
matter to the District Court with instructions to reinstate the jurys guilty verdict on Count
Five and to proceed to sentence Dobson on Count One and Count Five.
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